STATE OF PUNJABversusDR. P.L. SINGLA

                         [2008] 11 S.C.R. 600
                                                                      ~


A                       STATE OF PUNJAB
                                  V.
                          DR. P.L. SINGLA
                  (Civil Appeal No. 4969 of 2008)
                           JULY 31, 2008
B                                                                     ,.
        [R.V. RAVEENDRAN AND LOKESHWAR SINGH
                       PANTA, JJ]

         Service Law:
c       Grant of extra-ordinary leave - Effect of - Doctor in ser-
  vice of State Government found guilty of 5 years unauthorized
  absence - Punishment of withholding five increments with
  cumulative effect - Subsequent grant of extra-ordinary leave
  for the period of absence - HELD: Any consequential order                •
                                                                           ~



D directing how the period of absence should be accounted, is
                                                                           I
  an accounting and administrative procedure, which does not          > ..
  affect or supersede the order imposing punishment - Pun-
  ishment was imposed by order dated 11. 10. 1999 - That order
  was not cancelled, revoked or withdrawn - Subsequent order
  dated 25. 1. 2001 merely accorded extraordinary leave in re-
E
  gard to the period of absence, but did not condone the unau-
  thorized absence nor wipe out the punishment already im-
  posed - The said order was only consequential to the imposi-
  tion of punishment - Its effect was to maintain continuity of
  service of the respondent, but deny salary for the period of
F absence and not to count the period of absence as qualifying
  service for the purposes of pension - Its effect is certainly not
  to exonerate the respondent from the charge of unauthorised
  absence nor to wipe out the punishment.
       CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4969                  I
G of 2008                                                                  \
         From the final Judgment and Order dated 20.1.2006 of         -f
    the High Court of Punjab and Haryana at Chandigarh in RSA
    No. 2671 of 2005
H                                600
                                STATE OF PUNJAB v. DR. P.L. SINGLA            601

''
     ,   ,.                           [R. V. RAVEENDRAN J.]

                          Kuldip Singh and Ajay Pal for the Appellant.               A
                      Sanjay Sarin, Sarilina Sheikh, Abhinav Ramkrishna and
                  Ashok Mathur for the Respondent.
                          The Order of the Court was delivered by
                          R. V. RAVEENDRAN J. 1. Leave granted. Heard the par-       B
         1"
                  ties.
                        2. The respondent is a doctor in the service of the appel-
                  lant - State of Punjab. On 1.8.1991, the respondent was trans-
                  ferred to Makandam. The respondent joined duty on 17.8.1991,       c
                  but unauthorizedly absented himself from 1.6.1992. As he was
                  absent for nearly five years, the Health and Family Welfare
                  Department issued a charge-sheet dated 28.5.1997 to the re-
                  spondent. The two charges were : (a) absenting from duty de-
                  liberately from 1.6.1992; and (b) disobeying the orders of offi-
                                                                                     D
                  cial superiors. An enquiry was held into the said charges. The
     ,,' ~        Enquiry Officer submitted his report. In regard to first charge,
                  the Enquiry Officer found that the respondent had, in fact,
                  absented himself unauthorisedlyfrom 1.6.1992to17.10.1997.
                  But he accepted two explanations given by respondent and
                  concluded that the absence was under compelling circum-            E
                  stances. The first explanation was that those were days ofter-
                  rorism in Punjab. The second was that the respondent had sent
                  by post an application seeking leave from 1.6.1992 to
                  30.12.1992 and did not receive any refusal, and, therefore pre-
                  sumed that the leave had been granted. The Enquiry Officer         F

          ""'     also held that the second charge was not proved.
                       3. The Disciplinary Authority did not agree with the enquiry
                  report, for reasons recorded in a dissent note. The said note
                  stated that unauthorized absence from 1.6.1992 to 17 .10.1997
                                                                                    G
                  was clearly indiscipline; that only after the chargesheet was is-
                  sued, the respondent had offered to join back duty (and in fact
              ~   joined duty only on 18.10.1997) and not earlier. The dissent note
                  therefore proposed to hold the respondent guilty of the two
                  charges. A show cause notice dated 1.4.1999 was issued to
                                                                                    H
    602       SUPREME COURT REPORTS                  [2008) 11 S.C.R.
                                                                         .   '

A   the respondent enclosing a copy of the enquiry report and the
    dissent note. The respondent sent a reply dated 10.5.1999. The
    Governor of Punjab by order dated 1f?.9.1999 (communicated
    on 11.10.1999) did not accept the findings in the Enquiry Re-
    port. For the reasons stated in the dissent note, he held the
B   respondent guilty and imposed a punishment of withholding of
    five increments with cumulative effect.
        4. By a subsequent order dated 25.1.2001, issued in con-·
  tinuation of the order imposing punishment, the Governor of
  Punjab accorded extra-ordinary leave to the respondent for the
C period 1.6.1992 to 17.10.1997. Two consequences followed
  as a consequence thereof under the Punjab Civil Service Rules..
  A government servant is not entitled to any salary during_ the
  period of extra-ordinary leave (vide Rule 8.122 of Vol 1) and
  the period of extraordinary leave is not counted as service quali-
D tying for pension (vide Rule 4. 7 of Vol. II).
         5. The respondent filed a suit on 24.1.2002 in the court of
  the Civil Judge, Junior Division, Bhatinda for a declaration that
  the order dated 10.9.1999/11.10.1999 imposing punishment
  was null and void and for consequential reliefs. The trial court
E by judgment dated 14.9.2004, decreed the suit and declared
  that the order imposing punishment was void and that the re-
  spondent was entitled to all consequential benefits with interest
  at 12% PA from the date of suit. The appeal filed by the State
  was dismissed by the first appellate court on 16.3.2005. The
F second appeal filed by the State was also dismissed on
  20.1.2006. The said judgment of the High Court affirming the
  decisions of the trial court and first appellate court is challenged
  in this appeal by special leave.
G      6. The fact that the respondent had absented himself
  unauthorizedly from 1.6.1992 to 17 .10.1997 was neither de-
  nied nor disputed by the respondent. The question was whether
  there were satisfactory reasons for his absence and failure to
  seek leave. The explanation was that he did' not join duty as it
H was a period of terrorism in the State. The further explanation
                            STATE OF PUNJAB v. DR PL. SINGLA                603
                                  [R. V. RAVEENDRAN J.]

                 was that he had sent a leave application by post seeking leave A
                 for a period of seven months, that is from 1.6.1992 to
                 30.12.1992 and as he did not receive any reply rejecting his
                 request, he assumed that the leave had been sanctioned. Both
                 the explanations were vague and unsatisfactory. The unautho-
                 rized absence for a long period of more than five years remained B
            -(   unexplained. Even in regard to the period 1.6.1992 to
                 30.12 .1992 for which he claimed to have sent a leave applica-
                 tion, there was nothing to show that such a leave application
                 was sent or that it was received by the department. No proof
                 was produced for having sent such an application. Grant of leave c
                 is not something that can be inferred or presumed. At all events,
                 even according to respondent, there was no application for leave
                 for the period 31.12.1992 till 17.10.1997. There is also no ex-
                 planation as to why he remained absent unauthorizedly for more
                 than five years. Hence the charge of long unauthorized absence
                                                                                   D
                 was clearly proved. The half hearted finding of the Enquiry Of-
     , ..
            ~
                 ficer that there were compelling circumstances for the absence
                 was clearly without any basis. The dissent note in regard to the
--I              charge of absence was, therefore, justified. The punishment
 \               imposed was not disproportionate to the gravity of the miscon-
                 duct.                                                             E

                       7. But the courts below have decreed the respondent's
                 suit not because they recorded any finding to the contrary, but
                 for a reason wholly unconnected with the disciplinary proceed-
                 ings and imposition of penalty. The three courts have held that F
       _....     as a result of the subsequent order of the Governor dated
--               25.1.2001 according extraordinary leave for the period of ab-
                 sence (1.6.1992 to 17.10.1997), the misconduct was wiped out.
                 They have proceeded on the basis that when the employer ac-
                 cords extra-ordinary leave in respect of the period of absence,
                                                                                 G
                 for which the punishment was imposed, the employer is deemed
                 to have condoned the unauthorized absence. The courts below
~
                 therefore, held that the unauthorized absence of respondent
                 between 1.6.1992 and 17 .10.1997 could no longer be consid-
                 ered as unauthorized absence, and when the misconduct was
                                                                                  H
    604       SUPREME COURT REPORTS                 [2008] 11 S.C.R.


A   erased, the punishment therefor also stood erased. It is the cor-
    rectness of this finding that arises for our consideration.
          8. Unauthorized absence (or overstaying leave), is an act
    of indiscipline. Whenever there is an unauthorised absence by
    an employee, two courses are open to the employer. The first is
B   to condone the unauthorized absence by accepting the expla-
    nation and sanctioning leave for the period of the unauthorized
    absence in which event the misconduct stood condoned. The
    second is to treat the unauthorized absence as a misconduct,
    hold an enquiry and impose a punishment for the misconduct.
c
         9. An employee who remains unauthorisedly absent for
  some period (or who overstays the period of leave), on report-
  ing back to duty, may apply for condonation of the absence by
  offering an explanation for such unauthorized absence and seek
  grant of leave for that period. If the employer is satisfied that
0
  there was sufficient cause or justification for the unauthorized
  absence (or the overstay after expiry of leave), the employer
  may condone the act of indiscipline and sanction leave post
  facto. If leave is so sanctioned and the unauthorized absence
  is condoned, it will not be open to the employer to thereafter
E initiate disciplinary proceedings in regard to the said miscon-
  duct unless it had, while sanctioning leave, reserved.the right to
  take disciplinary action in regard to the act of indiscipline. We
  may note here that a request for condoning the absence may
  be favourably considered where the unauthorized absence is
F of a few days or a few months and the reason for absence is
  stated to be the sudden, serious illness or unexpected bereave-
  ment in the family. But long unauthorized absences are not usu-
  ally condoned. In fact in Security services where discipline is of
  utmost importance, even a few of days overstay is viewed very
G seriously. Be that as it may.
        10. Where the employee who is unauthorizedly absent
  does not report back to duty and offer any satisfactory explana-
  tion, or where the explanation offered by the employee is not
H satisfactory, the employer will take recourse to disciplinary. ac-
           STATE OF PUNJAB v. DR. P.L. SINGLA              605
                 [R. V. RAVEENDRAN J.]

tion in regard to the unauthorised absence. Such disciplinary A
proceedings may lead to imposition of punishment ranging from
a major penalty like dismissal or removal from service to a mi-
nor penalty like withholding of increments without cumulative
effect. The extent of penalty will depend upon the nature of ser-
vice, the position held by the employee, the period of absence B
and the cause/explanation for the absence. Where the punish-
ment is either dismissal or removal, it may not be necessary to
pass any consequential orders relating to the period of unau-
thorized absence (unless the rules require otherwise). Where
the punishment awarded for the unauthorized absence, does c
not result in severance of employment and the employee con-
tinues in service, it will be necessary to pass some consequen-
tial order as to how the period of absence should be accounted
for and dealt with in the service record. If the unauthorized ab-
sence remains unaccounted, it will result in break in service,
                                                                  0
thereby affecting the seniority, pension, pay etc., of the em-
ployee. Any consequential order directing how the period of
absence should be accounted, is an accounting and adminis-
trative procedure, which does not affect or supersede the order
imposing punishment
                                                                  E
       11. In this case, the punishment was imposed by order
dated 16.9.1999/11.10.1999. That order was not cancelled,
revoked or withdrawn. The subsequent order dated 25.1.2001
merely accorded extraordinary leave in regard to the period of
absence, but did not condone the unauthor:ized absence nor F
wipe out the punishment already imposed . The said order was
only consequential to the imposition of punishment. Its effect
was to maintain continuity of service of the respondent, but deny
salary for the period of absence and not to count the period of
absence as qualifying service for the purposes of pension. Its G
effect is certainly not to exonerate the respondent from the
charge of unauthorised absence nor to wipe out the punish-
ment. If the intention was to revoke the punishment, the order
dated 25.1.2001 would have clearly stated so. But it did not.
     12. The assumption by the courts below that when an or- H
    606       SUPREME COURT REPORTS                 [2008] 11 S.C.R.


A der is passed according extra-ordinary leave for the period of
  absence, it will have the effect of effacing or erasing the punish-
  ment already imposed, is therefore incorrect and is a serious
  error of law. When the trial court and the appellate court had
  committed this serious error, the High Court ought to have for-
B mulated an appropriate question of law and allowed the sec-
  ond appeal. Instead, it chose to dismiss the second appeal
  putting its seal of approval on a wrong interpretation of law lead-
  ing to serious repercussions in regard to discipline and admin-
  istration. The judgment of the High Court confirming the orders
c of the courts below, therefore calls for interference.
          13. We accordingly allow this appeal, set aside the judg-
    ments and decrees of the courts below and dismiss the suit of
    the respondent. Parties to bear their respective costs.
    R.P.                                           Appeal allowed.




                        \